People v. Gooding CA3 ( 2022 )

Filed 11/1/22 P. v. Gooding CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093376
Plaintiff and Respondent, (Super. Ct. No. 15F07708)
v.
JAMAAL DARRIS GOODING,
Defendant and Appellant.
A jury found defendant Jamaal Darris Gooding guilty of premeditated attempted
murder and assault with a firearm. As to the attempted murder conviction, the jury found
true that defendant personally used and intentionally discharged a firearm causing great
bodily injury. As to the assault with a firearm conviction, the jury found true that
defendant personally used a firearm and inflicted great bodily injury. The trial court
sentenced defendant to 32 years to life for the attempted murder conviction and
associated enhancement and stayed, pursuant to Penal Code1 section 654, a 17-year
sentence for the assault with a firearm conviction and associated enhancements.
1 Further section references are to the Penal Code unless indicated otherwise.
1
On appeal, defendant contends the evidence was insufficient to demonstrate he
harbored an intent to kill or that the attempted murder was premeditated and deliberate.
He further contends he was provided inadequate notice that he could be convicted of a
premeditated and deliberate attempted murder, rendering the indeterminate sentence he
received for the attempted murder conviction unauthorized. Defendant also raises several
evidentiary and sentencing claims of error.
We affirm defendant’s convictions but agree his case must be remanded for
resentencing. Upon remand, the trial court shall sentence defendant under all newly-
enacted provisions applicable to him.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 10:30 p.m., on Halloween 2015,2 defendant was involved in a
verbal altercation with a man at a McDonald’s restaurant that ended with defendant
shooting the man in the chest and upper thigh. The victim’s lung was punctured, but his
injuries were not life threatening. The entire encounter was visually recorded on
surveillance footage and shown to the jury at defendant’s trial.
The video depicted defendant walking into McDonald’s with his two cousins. On
their way into the restaurant, defendant and his cousins were encountered by the victim.
The victim and defendant’s group exchanged words before defendant and his cousins
went inside McDonald’s and the victim stayed outside. Over three minutes later, the
victim went inside McDonald’s and reengaged with defendant and his cousins. The men
appeared to be talking back and forth, and defendant looked angry while talking to the
victim. The victim then walked out of McDonald’s. Defendant and his cousins left the
dining area of the restaurant and went to the bathroom. They returned to the dining area
approximately 30 seconds later. The victim was at the entrance of the restaurant when
2 All date references are to the year 2015 unless indicated otherwise.
2
defendant and his cousins returned to the dining area. The victim remained there for
several seconds before going to his car, which was parked right outside the entrance of
the restaurant.
A little over a minute after leaving the bathroom, defendant pulled the hood of his
sweater over his head and put his left hand in his sweater pocket. The victim came into
the entryway of the restaurant and spoke to defendant for several seconds before going
back outside. During that time, defendant can be seen waving off the victim, nodding,
and at one point laughing. A woman affiliated with the victim left McDonald’s and
defendant followed her to the door. Defendant and the victim shook hands and talked in
the entryway of the restaurant for approximately 30 seconds. Defendant then pulled a
gun out of his pocket and fired at the victim three times.
Upon a search of defendant’s phone, officers found several text messages and
Internet searches relevant to defendant’s state of mind in the days after the shooting. In
the late evening hours of November 1, defendant searched the phrase “California
attempted murder law” twice on the Internet. On November 5 and 6, defendant searched
the Internet for a McDonald’s shooting occurring in Sacramento. On November 10,
defendant searched again for “California attempted murder law” and “McDonald’s
shooting in Sacramento.” (Italics omitted.)
Defendant was interviewed by police on November 10. During that interview
defendant denied he was at McDonald’s during the shooting. After the interview, on
November 11, defendant again searched the Internet for information related to a shooting
at McDonald’s. Later that day, defendant searched the term “[m]anslaughter” and the
phrases “[c]an lawyers help attempted murder cases” and “[a]ttempted murder charges
and penalties.” (Italics omitted.) He also searched the phrase “Will I still go to jail if my
homicide case involved self-defense,” before visiting a website entitled “Find local
criminal defense lawyers.” (Italics omitted.) The next day, defendant searched
“McDonald’s shooting in Sacramento.” (Italics omitted.)
3
Following the shooting, defendant sent and then deleted the following text
message: “Ima call you tmrw. We gon talk, bro. Be smooth. [My cousin] told you [I]
shot a hoe nigga on Halloween. Click. LOL.” (Italics omitted.) Defendant also sent and
then deleted the following message: “We got into it a[t] McDonald’s and I shot
somebody.” He was also involved in a chat messaging conversation in which he said,
“Nah fam the reason I’m hot and I said that Kuz I shot somebody on Halloween smh.”
The person he was communicating with responded, “Well damn. Its gon be straight tho
fam.” Defendant responded, “Thanks [prayer emoji] I’m used to it. Ima hit you lil later
thoe. And see Wsp.”
The victim testified at trial. He said he was drunk the night of the shooting and
did not recall much about the interaction between himself and defendant. He testified he
did not threaten defendant. Two percipient witnesses testified at trial. Neither of the
witnesses recalled the specific words exchanged between defendant and the victim. One
witness recalled both parties instigating the confrontation and the victim saying to
defendant “you’re gonna remember me, the guy from McDonald’s. He’s a real OG.”
The witness also recalled the interaction escalating more than was appropriate for the
situation.
Defendant testified at trial. He said he was 21 years old at the time of the
shooting. He testified he arrived at McDonald’s knowing one of his cousins was armed
with defendant’s gun. When the victim encountered defendant and his cousins outside
McDonald’s, the victim made disparaging remarks about defendant’s cousin who was not
armed. Defendant and his cousins told the victim he was not funny and to not play
around. The victim responded without humor, “ ‘I don’t play around either.’ ”
Defendant took the victim’s statement as a threat that the victim could hurt them.
Defendant testified that, after the victim’s statement, he saw his armed cousin pull
out the gun. In response, defendant told his cousin to put the gun away. Defendant’s
armed cousin and the victim exchanged words, and then defendant and his cousins went
4
inside McDonald’s to order food. The victim stayed outside until defendant and his
cousins were done ordering and were waiting for their food. The victim then came inside
McDonald’s and reengaged with defendant’s armed cousin. Defendant told the victim
multiple times to leave them alone, but the victim continued to talk to them. The victim
said, “ ‘By the time you guys are done ordering you guys’ food, you guys are going to see
what I’m about.’ ” A woman affiliated with the victim, who was inside McDonald’s
ordering food, apologized for the victim’s behavior. Defendant’s armed cousin said he
was “ ‘done’ ” and defendant told his cousin to meet defendant in the bathroom.
Defendant and his armed cousin met in the bathroom where defendant took
possession of the gun and defendant gave his previously armed cousin the keys to the car.
Defendant put the gun in his pocket. Defendant returned to the dining area of
McDonald’s and saw that the victim had gone to his car. Defendant believed the victim
was retrieving a gun. The victim returned to the door of the McDonald’s and yelled for
defendant and his cousins to come outside. Defendant took the victim’s demand as a
threat that if defendant went outside, he was going to get hurt.
Defendant waved off the victim in an attempt to tell him to leave him and his
cousins alone. The victim did not leave defendant alone and kept saying, “ ‘Come
outside, come outside. What’s up.’ ” Based on the victim’s tone, defendant took the
victim’s words as a threat to inflict violence. Defendant continued to wave off the victim
and tell him to leave him and his cousins alone.
Defendant eventually went outside to tell the victim that he and his cousins did not
want any problems. The victim did not back down and continued to stand near the door
of the McDonald’s despite the woman he was with leaving McDonald’s with food. The
victim held his hand out to defendant in an apparent attempt to resolve the problem.
Defendant shook the victim’s hand, but the victim would not let go of defendant and
pulled defendant toward him. The victim then said to defendant, “ ‘I’m an OG in this shit
and I don’t play around so don’t think I would ever play around with you mother
5
fuckers.’ ” Defendant knew the term “OG” to mean original gangster and described an
“OG” as a person who has experience being violent. Defendant took the comment as a
threat and was scared the victim was going to hurt him.
The victim eventually let go of defendant’s hand but continued to make threats.
The victim said, “ ‘You guys want smoke? You guys can come see me.’ ” Defendant
walked back into McDonald’s to get away from the victim. The victim then said, “ ‘Do
not turn around. That’s how mother fuckers get killed.’ ” Defendant took the comment
as a threat that the victim would immediately hurt him. Defendant also thought the
victim “could have had a gun, knife, anything,” especially because the victim said the
word kill.
Defendant turned around and, in response, the victim said, “ ‘You’re gonna
remember me, the guy from McDonald’s. I’m a real OG.’ ” Defendant also took this
statement as a threat, making him scared he was going to get hurt. Defendant did not see
a gun. Because the victim threatened to kill defendant and defendant could not see both
of the victim’s hands, defendant shot the victim.
After shooting the victim, defendant ran home, disposing of the gun along the
way. Defendant testified he owned the gun for a year and one-half before the shooting.
He owned a gun because he did not feel safe without one. Defendant testified he did not
devise a plan to kill the victim while in McDonald’s and he did not intend to kill the
victim when he shot at him. Defendant claimed to have shot the victim because the
victim threatened to kill defendant.
When defendant returned home, he went straight to his bedroom without talking to
his mother. He testified he did not tell his mother what happened because he did not
want to disappoint her or tell her that he had possessed a gun in her home. Defendant
testified he was sad, depressed, and did not act like his normal happy self for several days
after the shooting.
6
On cross-examination, the prosecutor asked defendant about several photos and
videos found on defendant’s cell phone. The first video was a rap video that depicted
defendant rapping and included multiple references to “gangland,” drugs, and guns, and
included images of a real gun.3 For example, one line in the song said, “How we
click . . . when he ain’t even pop shit. That wheel dope smoke the chopsticks.” (Italics
omitted.) Defendant testified he interpreted the lyric as meaning: “How are you part of
the crew if you ain’t never shot a gun.” Another line from the song said “hit him with
that slapstick. 40 or 30 K. [He] lean down like a mattress.” (Italics omitted.) To
defendant this line meant to shoot a person who then falls to the ground. Another line
said, “Let that block spin.” (Italics omitted.) To defendant, this meant to shoot guns.
When asked about his multiple references to the word “gangland,” defendant
testified “gangland” was a word people said a lot in his neighborhood. He also testified
his references to “flashing like lightening” was to shooting guns and “big timing” was to
making money. The prosecutor asked defendant to explain the lyric: “Trying to knock a
little sucker bitch, little sucker bitch.” Defendant testified he was rapping about talking
to girls but explained he would never use this language in an actual conversation with a
woman, and that the lyric was just music. Defendant further made hand gestures in the
recording resembling the shape of a gun. He explained he made the gestures because
they were consistent with the theme of the song. Throughout his testimony, defendant
maintained the song was not how he actually thought about guns but was just a song
incorporating themes from his neighborhood.
Also on defendant’s phone was a video of himself driving behind a police car. In
the video defendant can be heard saying, “In the hood right now. You see the police,
man. You feel me? I’m trying to hide my phone though, man. You feel me? You know
3 The rap video was not made part of the appellate record. Our description of the
video is limited to the video’s transcript and defendant’s testimony describing it.
7
me. I’m out here though man. You feel me. Look at these suckas, though man!”
Another video depicted defendant rapping in freestyle before firing a gun. The freestyle
lyrics he recorded were: “Young Mizzle. Knocking niggas down with the stencil. You
already even know I shot ‘em with a 4-4.”
The prosecutor also questioned defendant about several photos depicting guns
discovered on his cell phone. One photo showed a gun on defendant’s lap. Defendant
testified the gun was fake. Another photo showed the gun used in this case, while a third
photo showed defendant holding the gun used in this case and the fake gun depicted in
the first photo.
Following the close of evidence, the jury found defendant guilty of premeditated
attempted murder and assault with a firearm. As to the attempted murder conviction, the
jury found true that defendant personally used and intentionally discharged a firearm
causing great bodily injury. As to the assault with a firearm conviction, the jury found
true that defendant personally used a firearm and inflicted great bodily injury. The trial
court sentenced defendant to 32 years to life for the attempted murder and associated
enhancement and stayed, pursuant to section 654, a 17-year sentence for the assault with
a firearm and associated enhancements.
Defendant appeals.
DISCUSSION
I
Sufficiency Of The Evidence
Defendant raises two contentions related to the sufficiency of the evidence
presented at trial. First, he contends the evidence was insufficient to demonstrate he
acted with the intent to kill. Second, he contends the evidence was insufficient to
demonstrate he acted with premeditation and deliberation. We disagree with both
contentions.
8
In determining whether sufficient evidence supports a conviction, “ ‘we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence --
evidence that is reasonable, credible and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] . . . “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” ’ ” (People v. Nelson
(2011) 51 Cal.4th 198, 210.) We do not reweigh evidence. (Ibid.) This standard also
applies to insufficient evidence claims involving circumstantial evidence. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘We “must accept logical inferences that the jury
might have drawn from the circumstantial evidence.” ’ ” (Ibid.) The effect of this
standard of review is that a defendant challenging the sufficiency of the evidence to
support a conviction bears a heavy burden on appeal. (People v. Powell (2011) 194
Cal.App.4th 1268, 1287.)
A
Sufficient Evidence Demonstrated Defendant Acted With The Intent To Kill
Attempted murder “requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) Although implied malice is sufficient for murder, express
malice is required to prove attempted murder. (People v. Stone (2009) 46 Cal.4th 131,
139-140.) “Malice is express when the killer harbors a deliberate intent to unlawfully
take away a human life.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) The mental state
required to convict a defendant of attempted murder may be inferred from the
defendant’s acts and the circumstances of the crime. (People v. Smith (2005) 37 Cal.4th
733, 741.)
9
The surveillance footage showed defendant seeking out the victim once the
woman affiliated with the victim picked up the food she had ordered and left the
restaurant. Defendant followed her to the door and encountered the victim. The victim
shook defendant’s hand and the two men spoke for several seconds. The victim turned to
leave and defendant, standing within a few feet of the victim, shot three rounds at the
victim’s midsection. Firing multiple rounds at such a vulnerable area of the body is
sufficient to uphold an intent to kill finding. (See, e.g., People v. Smith, supra, 37 Cal.4th
at p. 741 [firing toward victim at close range in way that could have inflicted mortal
wound may support inference of intent to kill]; People v. Koontz (2002) 27 Cal.4th 1041,
1082 [“firing a shot at a vital area of the body at close range” is “indicative of a deliberate
intent to kill”].)
Defendant disagrees, arguing his age and the low-caliber weapon he used support
a finding he lacked intent to kill. While this evidence is relevant, it is not dispositive.
(People v. Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11 [“[m]atters of . . . the weight
of the evidence are ‘ “ ‘the exclusive province’ ” ’ of the trier of fact”].) The surveillance
footage showed defendant clearly targeting the victim’s attention and intentionally firing
a gun three times at close range at vulnerable areas of the victim’s body. Defendant’s age
and use of a low-caliber gun do not undermine the reasonable inference of intent drawn
from the other evidence. Accordingly, sufficient evidence supports the jury’s intent-to-
kill finding.
B
Sufficient Evidence Demonstrated Defendant Acted With Premeditation And Deliberation
An attempted murder is deliberate and premeditated “if it occurs ‘ “ ‘as the result
of preexisting thought and reflection rather than unconsidered or rash impulse.’ ” ’ ”
(People v. Cardenas, supra, 53 Cal.App.5th at p. 121; see People v. Jurado (2006) 38
Cal.4th 72, 118.) “ ‘Deliberation’ refers to careful weighing of considerations in forming
a course of action; ‘premeditation’ means thought over in advance.” (People v. Koontz,
10
supra, 27 Cal.4th at p. 1080.) “ ‘ “The process of premeditation and deliberation does not
require any extended period of time. ‘The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly . . . .’ ” ’ ” (People v. Cage (2015)
62 Cal.4th 256, 276.)
We ordinarily consider “ ‘three kinds of evidence to determine whether a finding
of premeditation and deliberation is adequately supported -- preexisting motive, planning
activity, and manner of killing -- but “[t]hese factors need not be present in any particular
combination to find substantial evidence of premeditation and deliberation.” ’ ” (People
v. Cardenas, supra, 53 Cal.App.5th at p. 121; see People v. Anderson (1968) 70 Cal.2d
15, 26-27.) Those guidelines -- referred to as the Anderson factors -- “are descriptive and
neither normative nor exhaustive,” so “reviewing courts need not accord them any
particular weight.” (People v. Halvorsen (2007) 42 Cal.4th 379, 420.)
The jury could reasonably infer from the evidence that defendant had a preexisting
intent to kill the victim because the victim had disparaged defendant’s cousin and would
not leave defendant and his cousins alone. The jury could also reasonably infer
defendant engaged in planning activity when defendant and his cousin went to the
bathroom shortly before the shooting and defendant gained possession of the gun.
Finally, as to the manner of killing, defendant fired three rounds at close range at
vulnerable areas of the victim’s body before immediately fleeing the scene. These facts
support the finding defendant premeditated and deliberated killing the victim. (See, e.g.,
People v. Poindexter (2006) 144 Cal.App.4th 572, 588 [“quickly fir[ing] three shots at
the victim, with a shotgun, from a relatively close range” supported finding of
premeditation and deliberation]; People v. Rand (1995) 37 Cal.App.4th 999, 1002
[deliberately aiming at people the defendant had a motive to kill supported a finding of
premeditation and deliberation].)
11
II
Defendant’s Indeterminate Sentence On
His Attempted Murder Conviction Is Not Unauthorized
Defendant contends his indeterminate sentence was unauthorized because the
prosecution failed to plead in the information that the attempted murder was committed
with premeditation and deliberation. Defendant acknowledges his counsel did not object
on this ground in the trial court, but argues his claim is preserved under established case
law. We disagree. Defendant had adequate notice the prosecution was seeking an
enhanced sentence on his attempted murder charge, and thus his failure to object to the
prosecution’s failure to include a premeditation allegation in the information forfeited the
issue.
A
Background
Defendant was charged by an amended information alleging, among other things,
that defendant committed attempted murder pursuant to sections 187, subdivision (a) and
664 “in that said defendant did unlawfully, and with malice aforethought attempt to
murder [the victim], a human being.” The prosecution’s motions in limine did not
reference a premeditation allegation associated with the attempted murder charge.
Defendant’s trial brief and motions in limine also did not reference a premeditation
allegation associated with the attempted murder charge.
During motions in limine and a discussion of the admissibility of the plethora of
gun photos discovered on defendant’s phone, the trial court commented that
premeditation was a key issue in the case. The parties also agreed to discuss jury
instructions between themselves but foresaw minimal issues outside the applicability of
the self-defense instruction. When it came time to address the jury instructions, neither
defendant nor his counsel voiced surprise at or objected to the instructions planned to be
submitted to the jury. The same is true for the proposed verdict forms, which the parties
12
acknowledged included a spot for a premeditation and deliberation finding. When the
instructions were submitted to the jury, they included the pattern jury instruction on
premeditation and deliberation (CALCRIM No. 601), and the verdict forms included a
spot for the jury to find a premeditation and deliberation allegation true or not true.
During closing argument, the prosecutor argued the evidence showed defendant
premeditated and deliberated the attempted murder because he acted without impulse,
concealed his identity, touched the gun several times before pulling it out of his pocket,
pulled back the hammer of the gun, shot three times at vulnerable areas of the victim’s
body, and fled the scene. In response, defendant’s counsel argued defendant did not act
with premeditation and deliberation but acted in self-defense.
The prosecution filed a sentencing brief advocating for the maximum sentence
without reference to the premeditation finding. Defense counsel filed a sentencing brief
advocating for the minimum sentence and acknowledged the court was required to
impose an indeterminate sentence for the attempted murder conviction. At sentencing,
the trial court imposed an indeterminate sentence for the attempted murder conviction
based on the premeditation and deliberation finding without objection from defense
counsel.
B
Defendant Forfeited His Notice Contention
Section 664, subdivision (a), provides: “[I]f the crime attempted is willful,
deliberate, and premeditated murder, as defined in Section 189, the person guilty of that
attempt shall be punished by imprisonment in the state prison for life with the possibility
of parole. . . . The additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the fact that the
attempted murder was willful, deliberate, and premeditated is charged in the accusatory
pleading and admitted or found to be true by the trier of fact.” (See generally People v.
Houston (2012) 54 Cal.4th 1186, 1226-1228 [considering a claim pursuant to § 664,
13
subd. (a)].) Section 960 provides: “No accusatory pleading is insufficient, nor can the
trial, judgment, or other proceeding thereon be affected by reason of any defect or
imperfection in matter of form which does not prejudice a substantial right of the
defendant upon the merits.”
The parties rely on three cases for their respective and adverse positions: People
v. Houston, supra, 54 Cal.4th at page 1186, People v. Arias (2010) 182 Cal.App.4th
1009, and People v. Perez (2017) 18 Cal.App.5th 598. We discuss these cases in
chronological order.
In Arias, “the charging document alleged defendant unlawfully and with malice
aforethought attempted to murder [two people], but did not allege the attempted murders
were willful, deliberate, and premeditated. Nor did [those counts] reference
subdivision (a) of section 664. No request was made to amend the information to include
the required allegations, and nothing in the record suggest[ed] the information was ever
amended. Nevertheless, the trial court instructed that if the jury found defendant guilty of
attempted murder, it [had to] make a separate determination of whether the prosecution
proved the attempted murder was done willfully and with premeditation and deliberation.
The jury’s attempted murder verdicts did not include special findings as to premeditation
and deliberation, but found ‘first degree attempted murder’ as to both victims. At
sentencing, the trial court imposed the section 664, subdivision (a) punishment of life in
prison for the attempted murder convictions.” (People v. Arias, supra, 182 Cal.App.4th
at p. 1017, fn. omitted.) The People argued the defendant forfeited his claim by failing to
challenge the adequacy of the pleading in the trial court. (Ibid.) The appellate court
disagreed.
The Arias court relied on our Supreme Court’s decision in People v. Mancebo
(2002) 27 Cal.4th 735. (People v. Arias, supra, 182 Cal.App.4th at p. 1017.) “In
Mancebo, [our Supreme Court] found no waiver, despite the defendant’s failure to object
at the time of sentencing, because the imposition of a sentencing enhancement based on
14
an unpled enhancement allegation in violation of statutory pleading requirements
amounted to an unauthorized sentence.” (Arias, at p. 1017.) The Arias court concluded
the violation of section 664, subdivision (a)’s pleading requirement “was no mere formal
defect in the information. Rather, defendant was not given notice of the special
sentencing enhancement that would be used to increase his punishment from a maximum
of nine years to a life term.” (Arias, at p. 1020.) “In short, the prosecution has not
complied with the notice requirements imposed by section 664, the defendant had no
actual notice of his risk of an enhanced sentence, the life terms were stricken, and the
case was remanded for resentencing.” (People v. Perez, supra, 18 Cal.App.5th at p. 616.)
Like Arias, in Houston, the indictment did not allege that the attempted murders
were deliberate and premeditated. (People v. Houston, supra, 54 Cal.4th at p. 1226.)
During trial, the court presented the parties with a draft of the verdict forms, which
required the jurors to determine whether the attempted murders were willful, deliberate,
and premeditated. (Ibid.) The court sought to clarify this issue, stating its understanding
that the prosecution intended to charge premeditated attempted murder -- “ ‘the type of
attempted murder [that is] punished by life imprisonment rather than five, seven, nine.’ ”
(Ibid.) The court explicitly told the parties to notify the court if this was not correct.
(Ibid.) A week later, the trial court announced its intent to have the verdict form set forth
deliberate and premeditated attempted murder as a special finding. (Ibid.) At the close
of evidence, the court instructed the jury on the definition of attempted murder, and
directed the jury to determine whether the attempted murders were willful, deliberate, and
premeditated. (Ibid.) The jury found that they were. (Ibid.) Defendant did not object
before the court submitted the case to the jury or at sentencing. (Ibid.)
On these facts, our Supreme Court found the defendant “received adequate notice
of the sentence he faced, and the jury made an express finding that the attempted murders
were willful, deliberate, and premeditated. A timely objection to the adequacy of the
indictment would have provided an opportunity to craft an appropriate remedy. Because
15
defendant had notice of the sentence he faced and did not raise an objection in the trial
court, he ha[d] forfeited this claim on appeal.” (People v. Houston, supra, 54 Cal.4th at
p. 1228.) In reaching its decision, the court declined to decide whether Arias “erred in
ruling that the defendant there did not forfeit his claim that the indictment was
inadequate.” (Houston, at p. 1229.)
Our Supreme Court declined to consider the propriety of Arias because it was
“unclear when the trial court issued its proposed jury instructions and verdict forms to the
parties and whether this issue was discussed.” (People v. Houston, supra, 54 Cal.4th at
p. 1229.) The court instead distinguished Arias: “In contrast, the trial court here actually
notified defendant of the possible sentence he faced before his case was submitted to the
jury, and defendant had sufficient opportunity to object to the indictment and request
additional time to formulate a defense. In addition, the jury was properly instructed and
made an express finding that the attempted murders were willful, deliberate, and
premeditated. On these facts, we conclude that defendant forfeited his claim that the
indictment did not comply with section 664.” (Houston, at p. 1229.)
In Perez, like in Arias and in Houston, the prosecution failed to allege
premeditated attempted murder. (People v. Perez, supra, 18 Cal.App.5th at p. 614.) Like
Houston, but unlike Arias, the Perez jury “found that each of the attempted murders was
willful, deliberate, and premeditated.” (Perez, at p. 606.) The question before us was
“whether the mere mention of the possibility of an enhanced sentence for premeditated
attempted murder during the court’s discussion of unrelated jury instructions impart[ed]
the notice required by due process as described in [Houston] or whether . . . the rationale
of [Arias was appropriate] in holding the sentence was unauthorized in light of the
prosecution’s failure to satisfy the express statutory requirement coupled with the failure
to advise defendant of the potential enhanced penalty.” (Perez, at p. 614.) We found the
latter answer more appropriate.
16
We explained that, based on what we gleaned from the Houston decision, in the
absence of the notice required under section 664, it is important that the potential life
sentence penalty be discussed with the defendant at trial. (People v. Perez, supra, 18
Cal.App.5th at pp. 617-618.) “While the Supreme Court was willing to forgive the
prosecutor’s transgression in Houston, it was precisely because the trial court had
provided what the prosecutor had failed to do; that is, the court was satisfied the
defendant was accorded fair notice of the charges he faced and an adequate opportunity
to object to or tailor his defense.” (Perez, at p. 618.)
We found that, “[u]nlike the trial court in Houston, which clearly telegraphed the
issue for the defendant, the prosecutor’s brief allusion to the attempted murder counts
when discussing an unrelated jury instruction did not give defendant fair notice that his
sentence could jump from a maximum of nine years to a life term for each of the four
counts.” (People v. Perez, supra, 18 Cal.App.5th at p. 618.) To find otherwise would
have meant “the prosecution can ignore its responsibility to plead premeditated attempted
first degree murder as required by section 664, and a defendant forfeits his or her right to
challenge the deficiency as long as the prosecutor at some point during trial mentions or
alludes to the two types of attempted murder. Such a rule would eviscerate section 664,
do violence to the meaning and rational of Houston, and undermine any fairminded
understanding of notice and due process.” (Perez, at p. 617.)
Here, the record reflects defendant was on notice the attempted murder charge
included an allegation he committed the act with premeditation and deliberation, and thus
the charge carried an indeterminate term. Before trial, the trial court referred to the
premeditation issue and the parties indicated they would talk about the jury instructions.
After the introduction of evidence, the parties went over the jury instructions again, and
defendant made no objections to the pattern jury instruction pertaining to premeditation
and deliberation, even though the court gave the parties additional time to review and
object to the proposed instructions. When discussing verdict forms, the parties explicitly
17
approved of including the premeditation and deliberation finding in the jury’s attempted
murder verdict. The court again gave the parties time to review the forms and make
further objection if warranted. Both parties addressed the issue during closing argument,
and defense counsel addressed the issue in her sentencing brief. At bottom, defendant’s
case is like Houston because “defendant was accorded fair notice of the charges he faced
and an adequate opportunity to object to or tailor his defense.” (People v. Perez, supra,
18 Cal.App.5th at p. 618.) On this record, there was more than an allusion to the two
types of attempted murder; indeed, the issue was at the center of defendant’s trial as
noted by the trial court before a single witness was called. Accordingly, defendant
forfeited his notice contention, and his indeterminate attempted murder sentence was not
unauthorized.
III
Evidentiary Claims
Defendant challenges the admission of several pieces of evidence, which can be
divided into two categories -- evidence that was admitted as part of the prosecution’s
case-in-chief and evidence that was admitted as impeachment evidence. We review a
trial court’s rulings on the admissibility of evidence for abuse of discretion. (People v.
Benavides (2005) 35 Cal.4th 69, 90.)
A
It Was Not An Abuse Of Discretion To
Admit Defendant’s Text Messages And Internet Searches
Defendant first challenges the trial court’s admission of his text message that read:
“Ima call you tmrw. We gon talk, bro. Be smooth. [My cousin] told you [I] shot a hoe
nigga on Halloween. Click. LOL.” (Italics omitted.) He argues this text message did
not constitute an admission and was hearsay because it is unclear whether these are
defendant’s words or a recitation of his cousin’s words. Concerns about ambiguity of a
statement, however, pertain to the evidence’s weight not admissibility. (People v. Young
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(2019) 7 Cal.5th 905, 927; People v. Ochoa (2001) 26 Cal.4th 398, 438.) It is enough
that a reasonable juror could understand the evidence as the prosecution argued it when
making an evidentiary ruling. (Young, at p. 927.) As defendant concedes, it is unclear
who to attribute these words to -- defendant or his cousin. But one reasonable inference
is that the words can be attributed to defendant, and thus there was a sufficient basis for
the trial court to find this message was a statement by a party opponent and admissible.
Defendant further challenges, on relevancy grounds, the admission of his
remaining text messages and all of his Internet searches. Under Evidence Code
sections 350 and 351, respectively, “[n]o evidence is admissible except relevant
evidence,” and “all relevant evidence is admissible.” Under Evidence Code section 210,
“ “Relevant evidence’ ” means “evidence, including evidence relevant to the credibility
of a witness or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.”
Defendant argues his text messages “[w]e got into it a[t] McDonald’s and I shot
somebody” and “Nah fam the reason I’m hot and I said that Kuz I shot somebody on
Halloween smh” were irrelevant because the identity of the shooter was not a fact in
dispute. Pointing to the lack of context shown by the messages, defendant argues the fact
he did not assert self-defense in the text messages does not provide probative value to the
messages because it is unclear defendant’s relationship with the recipients was such that
he would explain “the nuances of the shooting.” Again, defendant’s argument goes to
weight, not admissibility. As explained, it is enough that a reasonable juror could
understand the evidence as the prosecution argued. (People v. Young, supra, 7 Cal.5th at
p. 927.) Defendant knew the people he was communicating with well enough to
implicate himself in a crime, yet he did not explain to them facts that excused his
criminal conduct. It is reasonable to infer from these messages and defendant’s failure to
assert self-defense that defendant knew he did not have a valid claim of self-defense.
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Defendant argues all of his Internet searches were irrelevant. As described, in the
days following the shooting, defendant searched the phrase “California attempted murder
law” multiple times, the term “manslaughter,” the phrases “[c]an lawyers help attempted
murder cases,” and “[a]ttempted murder charges and penalties.” (Italics omitted.) It was
not until after he was interviewed by police that defendant searched the phrase, “Will I
still go to jail if my homicide case involved self-defense” and visited a Web site entitled
“Find local criminal defense lawyers.” (Italics omitted.) Defendant further searched the
Internet multiple times before and after his interview with police for information
pertaining to a shooting at McDonald’s. The trial court admitted this evidence because
there was probative value in the timing and number of searches pertaining to the shooting
and the lack of searches pertaining to defendant’s claim of self-defense. To the trial
court, defendant’s searches were relevant to his state of mind and claim of self-defense.
This was not an abuse of discretion. Indeed, these Internet searches demonstrate
that defendant’s state of mind was focused on getting away with a crime in the days
following the murder. His Internet searches pertained to whether there was public
knowledge of the shooting and the extent of his culpability for the shooting. It was not
until he was interviewed by police that defendant switched his focus to defending against
criminal charges and claiming self-defense. The relevance of these Internet searches
cannot be judged on a search-by-search basis, but in the overall timing, volume, and
progression of the terms and phrases being searched. It is that progression that
demonstrated defendant’s changing state of mind and provided context to whether his
claim of self-defense was credible.
We agree with defendant that a criminal suspect’s Internet searches pertaining to
hiring an attorney are not relevant to prove guilt. That was not, however, the purpose for
which defendant’s Internet searches was admitted and defendant has not pointed to any
allusion to such an inference in the record. Indeed, the prosecutor’s closing argument
focused on the progression of defendant’s Internet searches as relevant to whether his
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claim of self-defense was credible. Thus, to the extent defendant argues evidence of his
Internet searches was unduly prejudicial because the jury would improperly infer
defendant’s guilt, that claim lacks merit.
For the same reasons, we reject defendant’s due process claim pertaining to his
text messages and Internet searches. (People v. Lucas (1995) 12 Cal.4th 415, 464 [proper
admission of evidence under state rules of evidence generally does not violate a
defendant’s due process rights].)
B
The Trial Court Erred By Admitting Defendant’s
Rap Video Into Evidence; However, The Error Was Harmless
Defendant argues the trial court abused its discretion by admitting photographs of
him possessing guns, a video of him freestyle rapping and shooting a gun, a video of him
driving behind a police car appearing to make light of the shooting, and his rap video
because these items of evidence did not constitute proper impeachment. We disagree;
however, we do agree with defendant that his rap video should have been excluded on
Evidence Code section 352 grounds.
When a defendant testifies in his or her own defense, that defendant places his or
her own credibility in issue and is subject to impeachment. (People v. Gutierrez (2002)
28 Cal.4th 1083, 1139; Evid. Code, § 1101, subd. (c) [“Nothing in this section affects the
admissibility of evidence offered to support or attack the credibility of a witness”].)
Further, under Evidence Code section 780, subdivision (i), “a witness who makes a
sweeping statement on direct or cross-examination may open the door to use of otherwise
inadmissible evidence of prior misconduct for the purpose of contradicting such
testimony.” (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938,
946.) The admission of impeachment evidence is subject to the trial court’s exercise of
discretion under Evidence Code section 352. (People v. Clark (2011) 52 Cal.4th 856,
931.) Evidence Code section 352 provides: “The court in its discretion may exclude
21
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
The trial court admitted the challenged evidence because it demonstrated
defendant’s relationship with guns and his emotional reaction to the shooting. Defendant
testified he owned a gun because he did not feel safe without it. He also testified he did
not want his mother to know he possessed a gun in her home because it would disappoint
her. This testimony left the impression with the jury that defendant owned a gun for self -
defense and was modest about his gun ownership by keeping his ownership secret from
his family. The challenged evidence impeaches this testimony. The photographs of
defendant with guns, the freestyle rap video wherein defendant fires a gun into a
neighborhood, and the rap video wherein defendant displays a gun and raps about
shooting people all refute the impression he owned a gun because he did not feel safe
without one. Indeed, the evidence demonstrated defendant’s gun ownership was not a
defensive nor a modest act. Similarly, the video of defendant driving behind a police car
and making light of the shooting refuted defendant’s testimony he was depressed for
several days after the shooting and did not leave his bedroom or act like his usual happy
self. This evidence was all relevant to the credibility of defendant’s testimony.
Defendant disagrees that the challenged evidence constituted impeachment
evidence. First, he argues his testimony on direct examination was admissible evidence,
thus could not have been cured by inadmissible evidence. Not so. The challenged
evidence was ruled inadmissible before defendant testified because it was irrelevant.
Once defendant testified to his own character as a gun owner and his mental state in the
days after the shooting, the evidence became relevant and admissible. The challenged
evidence was related to the issues raised by defendant’s testimony and served to refute
the impression defendant had left with the jury concerning his relationship with guns and
his emotional reaction to the shooting.
22
Second, defendant argues the challenged evidence did not serve to refute his
testimony because it is possible to own a gun for self-defense and also exhibit bravado in
that ownership. He further argues his making light of the shooting did not refute that he
was also depressed following the shooting. The standard for admitting impeachment
evidence, however, is not that the evidence disprove any given fact, but that it “has any
tendency in reason to prove or disprove the truthfulness of [defendant’s] testimony . . . .”
(Evid. Code, § 780.) The challenged evidence tended to disprove defendant’s testimony,
and thus it met the threshold for admission.
Finally, defendant argues the evidence constituted inadmissible character evidence
because the jury could use the evidence to determine defendant was more likely to use a
gun offensively. Not so. The evidence was admitted to attack defendant’s credibility and
refute the testimony he supplied during direct questioning by his attorney, which left the
impression that defendant would use a gun only in self-defense.
Even so, the admission of defendant’s rap video carried unduly prejudicial weight,
leading us to conclude it should have been excluded.4 The rap video’s relevance was
limited given its artistic purpose and the fact it did not pertain to this or any other actual
shooting. To the extent the rap video impeached defendant’s assertions he owned a gun
for self-defense and was modest with his gun ownership, those assertions were rebutted
with the photographs of defendant with guns and the freestyle rap video clip. The
extended rap video, especially the lyrics of the song, added little to the jury’s
consideration. Further, the rap video introduced the topics of gangs and drugs into a case
where those topics were not at issue. On balance, defendant’s rap video was unduly
prejudicial when weighed against its limited probative value.
4 In his opening brief, defendant does not raise Evidence Code section 352
contentions to the other items of challenged evidence but addresses prejudice in the
context of harmless error review only.
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Regardless, admission of the rap video was harmless under either standard.
(People v. Watson (1956) 46 Cal.2d 818; Chapman v. California (1967) 386 U.S. 18 [17
L.Ed.2d 705].) The entire interaction between defendant and his victim was recorded on
surveillance footage. The jury was able to judge defendant’s demeanor as well as the
victim’s demeanor, and at no point did the victim look threatening nor defendant look
scared. Further, the video showed defendant and his cousins went into the bathroom a
short time before defendant came out of the bathroom with a concealed gun. Defendant
then sought out the victim, engaged in a conversation in close proximity to the victim,
and then shot the victim several times. A reasonable inference from this video and
defendant’s testimony that he took possession of the gun in the bathroom is that
defendant and his cousins hatched a plan in the bathroom to shoot the victim.
Accordingly, defendant was not harmed by the admission of his rap video.
IV
Remand Is Appropriate
Defendant contends his case must be remanded for the trial court to resentence
him in light of several recent changes in the law. (Citing Assem. Bills Nos. 124 (2021-
2022 Reg. Sess.) & 518 (2021-2022 Reg. Sess.); Sen. Bill No. 567 (2021-2022 Reg.
Sess.).) The People acknowledge the recent changes cited by defendant are applicable to
him and that he falls within the laws’ ameliorative language. The People argue, however,
that remand is futile because the trial court will undoubtedly make the same sentencing
decision it has already made. We are not persuaded.
In the context of Assembly Bill No. 518’s amendment to section 654, there is no
clear indication what sentencing decision the trial court would have made if it had
possessed the sentencing discretion given by Assembly Bill No. 518. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 [when sentencing decisions are made without
informed discretion, “the appropriate remedy is to remand for resentencing unless the
record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion
24
‘even if it had been aware that it had such discretion’ ”].) Assembly Bill No. 518, which
became effective on January 1, 2022, expands the trial court’s discretion. Under
section 654, a defendant who violates multiple laws in a single course of action may be
charged with and convicted of distinct crimes but sentenced for only one offense;
sentence on the other offenses is imposed but stayed. (People v. Sek (2022) 74
Cal.App.5th 657, 673.) Former section 654 required the trial court to impose sentence
based on the offense with the longest prison term. (Sek, at p. 673.) Assembly Bill No.
518 amended section 654 to “remove[] the requirement to impose the longest prison
term” (Sek, at p. 673) in order “to give trial courts discretion in selecting the punished
offense for conduct punishable under multiple provisions of law” (People v. Mendoza
(2022) 74 Cal.App.5th 843, 861-862). Section 654, subdivision (a) now provides: “An
act or omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.”
The trial court acknowledged the Legislature required an “extreme sentence” in
defendant’s case and declined to strike or reduce the gun enhancement attached to
defendant’s attempted murder conviction because defendant’s firing of the gun fell
squarely within the definition of section 12022.53, subdivision (d). The trial court further
imposed the aggravated term for defendant’s stayed assault with a deadly weapon
conviction based on defendant causing injury to the victim he assaulted. While the trial
court’s stated reasons provide some basis for its sentencing decisions, these reasons do
not convince us the trial court would have chosen the 32-years-to-life sentence flowing
from the attempted murder conviction and attached gun enhancement mandated by
former section 654 over the 17-year sentence flowing from the assault with a deadly
weapon conviction and attached gun and great bodily injury enhancements allowed by
current section 654. Stated differently, while the trial court may have believed the upper
terms were appropriate for counts one and two, there is nothing in the record indicating it
25
preferred the sentence imposed by count one over the sentence imposed by count two.
Thus, remand is required. Upon remand, the trial court shall fully resentence defendant,
incorporating all new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857,
896, fn. 15.)
DISPOSITION
Defendant’s convictions are affirmed. Defendant’s sentence is vacated, and the
matter is remanded for a full resentencing.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Boulware Eurie, J.
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